Site Navigation

Site Mobile Navigation

Tough Court Fight Expected Over DVD Code

By CARL S. KAPLAN Tough Court Fight Expected Over DVD Code fter losing the first round in an important legal fight over DVD technology, lawyers for three men who have become targets of Hollywood's ire are preparing for a full-blown trial. But they concede that they face an uphill fight in the courtroom of Judge Lewis A. Kaplan.

Related Articles

DVD Lawsuit Questions Legality of Linking

(January 7, 2000)

DVDs Are a Step in Making VCR Obsolete

(January 7, 2000)

Judge Rejects Effort to Block DVD Program

(December 31, 1999) Following a testy hearing in United States District Court in Manhattan late last month, the judge issued a preliminary injunction forbidding the defendants from posting a piece of software called DeCSS on the Web. The program cracks an encryption system that protects DVDs, or digital versatile discs. Judge Kaplan issued a written opinion supporting the injunction on Feb. 2, and a date for the trial will be set next month.

DeCSS was developed by a group of European programmers including Jon L. Johansen, a Norwegian teenager, and it has been widely disseminated on the Internet since last October. Its creators say they wrote the software so they could watch DVD movies on computers running the free Linux operating system. But what is significant about Judge Kaplan's decision is that he said it really does not matter why someone would use DeCSS -- the software itself is illegal.

Movies released in the DVD format are protected by a security system called the Content Scramble System (CSS). Under this system, the movie data recorded on the DVD disks is encrypted, and it may only be decrypted and played back for viewing on an authorized DVD player or computer drive that has a licensed CSS "key."

Eight Hollywood movie studios filed suit in Manhattan last month, accusing Shawn C. Reimerdes, Roman Kazan, and Eric Corley (known online as Emmanuel Goldstein) of distributing the DeCSS program on Web sites they operate. The studios said in legal papers that the DeCSS program is essentially a piracy tool that can be used to make and distribute decrypted copies of movies on the Internet.

Lawyers for the defendants countered in the hearing and in legal papers that the primary purpose of DeCSS is to allow people to play DVDs that they already own on Linux computers. There are now no authorized DVD players that work with Linux systems, they said, adding that it would be impractical to use DeCSS to help make copies of movies because the file sizes involved would be so large.

Judge Kaplan, to put it mildly, did not endorse the view that DeCSS was strictly a way to play back movies. At one point during the hearing, he asked sarcastically: "What do you think people are going to do with DeCSS, put it on floppy disks and use it to fertilize the garden?"

But then the judge moved beyond this dispute and clinched the argument. He said that even assuming that the DeCSS code was intended and usable solely to permit the playing and not the copying of DVDs, playing the decrypted DVDs on unauthorized machines violated a federal law, the Digital Millennium Copyright Act. That law was passed in 1998 to protect the interests of copyright holders distributing digital works.

Under section 1201(a)(2) of the DMCA, Judge Kaplan said, it is illegal for anyone to offer technology intended to circumvent a technological measure that controls access to a work protected under the act.

At a minimum, the court said, it is "perfectly clear" that CSS controls access to the movie studio's copyrighted movies. It was also undisputed, the judge said, that DeCSS defeats CSS and decrypts copyrighted works without the authority of the copyright holders. Therefore, he said, it logically follows that DeCSS circumvents CSS, so the defendants, who distributed the software, most likely violated the copyright act.

Does an ISP that hosts a site carrying the descrambling code violate federal law?

In a sense, Judge Kaplan interpreted the copyright act as a giant moat surrounding a castle filled with copyrighted materials. Under the act, it is illegal to cross the moat, no matter what you do once you enter the castle.

The judge's strict reading of the copyright act represents a second defeat for supporters of DeCSS, which include champions of the open-source software model and civil libertarians. In a separate case in California state court last month, a judge issued a preliminary injunction forcing dozens of people along with more than 400 unnamed "John Doe" defendants to stop posting copies of the DeCSS program on their Web sites. The California judge reached his conclusions on different legal grounds, however, finding that the defendants likely violated state trade-secret law. That case is still pending. The California judge declined to forbid anyone from linking to a site that posts the program.

The New York case could well prove to be more legally significant because it represents one of the first cases in which a federal court will attempt to interpret the Digital Millennium Copyright Act.

Robin Gross, a lawyer for the Electronic Frontier Foundation, which is representing defendants in both cases, conceded she has a difficult task ahead of her in arguing the case before Judge Kaplan. But "I don't want to rule out success in his courtroom," she said.

An error has occurred. Please try again later.

You are already subscribed to this email.

In the New York case, Gross said she intends to "build a record of facts, really do a good job of educating the judge on what DeCSS does and does not do," she said. She added that one key issue in the case will be the constitutionality of the DMCA. "Where does it say that copyright holders have the right to decide which players consumers are allowed to use to view DVDs?" she asked.

Another key issue in the case, Gross said, is whether an Internet service provider that hosts a site carrying the descrambling code violates federal law. One of the defendants said he operated such an ISP and should be immune from lawsuits, but Judge Kaplan said he was not.

In addition, the movie studios recently amended their complaint to include a claim that anyone who links to a site carrying the DeCSS software violates the copyright act. "That's really a quick way to kill speech on the Net," Gross said.

Related Article

Court Says Software Maker Can Emulate Sony's PlayStation

(February 11, 2000) For his part, Jack Valenti, head of the Motion Picture Association of America, a trade group representing the major Hollywood studios, said that he was "greatly cheered" by Judge Kaplan's ruling. "One thing you can say about it, it's not ambiguous," he said.

Valenti added that the movie studios have no alternative but to go after the sites carrying DeCSS, which he considers to be a piracy tool or "skeleton key" that threatens to undermine the studios' investment in the DVD market.

Mark A. Lemley, a law professor at the University of California at Berkeley who is an expert in intellectual property and the Internet, said he thought Judge Kaplan correctly interpreted the copyright act in concluding that an unauthorized descrambling device, in itself, violates federal law.

"Having said that, I think it's a terrible result," said Lemley. The goal of the law, he said, was to prevent people from using a device that would make copyright infringement easier. Yet with DeCSS, he said, "it doesn't in fact appear to me that [the software] facilitates piracy."

The program's purpose is to "take something you've bought yourself and play it on a different platform," Lemley said. "It's not clear we ought to be prohibiting that."

"Copyright law was not designed to create an invulnerable fortress protected by a moat," Lemley said. By passing the Digital Millennium Copyright Act, Congress has prevented people from getting to the copyrighted works at all, for any reason, including legitimate ones, he said.

CYBER LAW JOURNAL is published weekly, on Fridays. Click here for a list of links to other columns in the series.

Related Sites

These sites are not part of The New York Times on the Web, and The Times has no control over their content or availability.